The Medical Practitioners’ Act 2007 introduced changes to how the Medical Council regulates the medical profession. Among the most important was the introduction of fitness to practise inquiries in public. It also introduced the allegation of poor professional performance against doctors and shifted the composition of lay persons on the Medical Council from three out of 25 to 13 out of 25.

Under the old legislation, all fitness-to-practise inquiries were heard in private and doctors were only named by the Medical Council after findings were made against them. The only allegation that could be brought against them was that of professional misconduct. This meant the bar to trigger an inquiry was high and fewer actions were brought.

More inquiries
There has been a growth in inquiries since the new act was introduced in 2008, up from 24 (in private) in 2007, to 73 in 2011, with the majority in public.

Though official figures have not yet been released for 2012, they are likely to exceed 2011. Room still exists in the 2007 act for some inquiries to be held in private, or partly in private, but the majority are now held in public.

The changes have brought disquiet in the medical profession. Some doctors find themselves publicly called to account for failings which would never have come under scrutiny in the past.

Some cases have raised particular concerns, including that of paediatric surgeon Prof Martin Corbally.

He was found guilty over three allegations of poor professional performance after a two-and-a-half-year-old patient in his care had an unnecessary tongue-tie operation, though during the case “systems failures, weaknesses and errors” in procedures at Our Lady’s Children’s Hospital in Crumlin were uncovered.

Prof Corbally has since sought a judicial review of the decision.

GP Dr Ruairí Hanley, who was recently elected to the Medical Council, says the 2007 act, with its lesser allegation of poor professional performance, has led to “an explosion in less serious complaints” against doctors, and, being held in public, is unfairly damaging doctors’ reputations.

If there are systems errors caused by poor management in hospitals that lead to patient harm it is not the manager who suffers, he says, it is the doctor.

According to
Dr Hanley, the new legislation has “effectively criminalised doctors”. The media treats inquiries like criminal trials, he says, and doctors suffer reputational damage even when no findings are made against them. They suffer incredible stress and have had mental health difficulties because of it.

Some legal practitioners have also raised concerns about the operation of the act. Law
firm Matheson, which represents both doctors and patients, has questioned the need for public hearings.

Tom Hayes, partner and head of the company’s healthcare group, says the requirement for transparency could be satisfied and individuals’ privacy protected by holding inquiries in private and only publishing the outcome where an adverse finding is made and sanctions are imposed.

Other practitioners have raised concerns about the allegation of poor professional performance. They point to the UK and say the allegation of deficient professional performance there might be a better model.

The norm in the UK is to measure performance over time, involving either multiple cases or repeated errors in relation to the same patient. In
Caelham v the General Medical Council
the court held there might be circumstances in which an isolated error could amount to deficient professional performance, but the circumstances would be very rare.

A legal practitioner familiar with the workings of the fitness-to-practise committees, but who does not wish to be named, said the definition in the Irish act is “odd and problematic” as it talks about a doctor having to show deficits in “both skill and knowledge”. The UK definition is “better designed to catch doctors whose performance is a cause for concern rather than those doctors who have simply, on an isolated basis, made a particular error”, he says.

With the Irish test, one time of falling short can amount to a finding of poor professional performance even though, in reality, the isolated incident apart, there might be no legitimate basis for concern over that doctor’s performance. The Irish test is also being interpreted “robustly and is leading to findings that seem harsh”.

“I have no doubt there have been cases where doctors have not demonstrated a deficit in both [skill and knowledge] but have nonetheless been found guilty of poor professional performance.”

He also says dealing with committees
composed mainly of lay members presents difficulties.

“There are sometimes challenges in persuading lay members of the committee that there is greater complexity and nuance to the practice of medicine then they perhaps believe to be the case,” he says.

He does not, however, think there should be a rowing back on public inquiries as transparency has become the norm across Europe.

“The better question may be whether what is considered capable of being subjected to an inquiry should be scrutinised.”

Successful changes
Prof Kieran Murphy, president of the Medical Council, says the changes introduced under the 2007 Act have “in general been a great success”.

The act has significantly enhanced the powers of the Medical Council to oversee and regulate education of doctors from training until they retire, he says, ensuring good professional practice.

He acknowledges the fitness-to-practise inquiry process is stressful and says the council does its best to minimise that. He also defends the hearing of inquiries, including for poor professional performance, in public. The preliminary proceedings committee, which examines complaints at the outset, only sends them forward for public inquiry if there is “sufficient concern”, he says.

Prof Murphy says with any legislation there are always issues that crop up in how the act is worded, that perhaps may lead to “unforeseen circumstances in certain situations”.

The council is
in discussions with the Department of Health about some “technical amendments” of the act, he says, but
declines to go into further detail.

“The underlying principles behind the act we would entirely support,” he says.

Last December, the High Court granted Prof Corbally leave to bring a challenge to the council ruling against him. Perhaps this, coupled with the departmental review, will help bring more clarity to the workings of the act.